Due Process and Territorial Jurisdiction

I. DUE PROCESS AND LEGAL REPRESENTATION



A. Right to counsel implied in 14th Amendment where personal liberty is at stake

1. “…nor shall any State deprive any person of life, liberty, or property, without due

process of law…” (binds STATE courts)



B. If personal liberty is not at stake, Court uses a balancing test called the Eldridge Test to

determine if Court should appoint counsel to litigant.

1. Eldridge Test (balancing test)

a. private interests at stake presumption of no right

b. government’s interest versus to counsel in absence of

c. risk that procedures will potential loss of personal

yield erroneous decision liberty



C. Lassiter v. Department of Social Services (parental rights)

1. Facts: Dept. of SS petitioned to terminate parental rights of Lassiter. D received

notice of hearing, but did not procure counsel and court did not appoint counsel on

her behalf. Trial court terminated parental rights.

2. Holding: Due Process Clause does not lend an indigent parent right to counsel in

proceedings involving termination of parental rights.

3. Rule: An indigent litigant has a right to counsel only when, if the litigant loses, the

litigant may be deprived his own personal liberty; Sixth Amendment—“In all

criminal prosecutions, the accused shall enjoy the right…to have the Assistance of

Counsel…”

4. Principle application: Court used Eldridge Test to find that Court did not owe

Lassiter counsel.



D. Adversarial process requires fair judicial procedure, which includes notice, right to

counsel, and right to cross-examine witnesses.



II. DUE PROCESS AND TERRITORIAL JURISDICTION



A. Fourteenth Amendment limits places where a D is required to defend lawsuit

1. “…Nor shall any State deprive any person of life, liberty, or property, without due

process of law…” (binds STATE courts); (5th Amendment=federal due process)



B. Types of territorial jurisdiction

1. In personam jurisdiction

2. In rem jurisdiction-dispute=who has right of land itself

3. Quasi in rem

a. Type 1-resolves dispute about property (btw you and bank)

b. Type 2-property must be attached (Shaffer requires min con)



C. Pennoyer v. Neff (Sleezy lawyer in rem)

1. Mitchell (OR) sued Neff (CA) in OR state court. State court allowed Mitchell to

advertise notice of suit in newspaper. Neff did not appear in court. Default judgment

was entered against Neff. Neff’s OR property was sold at auction to Mitchell and

Mitchell sold property to Pennoyer. Neff sued Pennoyer in district court to recover

property.

2. Judgment against Neff was invalid because:







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a. Quasi in rem: Court failed to bring property under its control by

attachment before judgment was rendered against owner (required under

Type II).

b. Due Process: No natural person is subject to jurisdiction of State unless he

appear in court, or be found with the State, or be a resident thereof, or have

property therein (must be attached).

i. Service of Process/Notice required—guaranteed right to be heard

3. Since Pennoyer, Supreme Court has consistently held that Ps are not free to bring

suit wherever they choose.

4. Every State has the power to determine for itself the civil status of its inhabitants.



D. Minimum Contacts Test (cite Shoe)

1.Degree of relatedness v. number of contacts

a. depends on quality and nature of contacts

b. reasonable foreseeability of being haled into that court (WW VW)

i. D should be able to safeguard against possible litigation by

procuring insurance, passing costs onto customers or severing

contact with State

c. “meaningful contacts, ties, or relations”-Shoe

d. focus on D’s contacts and not P’s contacts (Keeton)

2. general jurisdiction

a. number and quality of contacts sufficiently substantial that one may

litigate any dispute in the state courts, regardless of dispute’s origin

b. Perkins v. Benguet Consolidated Mining Co.

i. Dispute about business in Philipines heard in OH b/c President of

company ran co. out of OH for some time

c. Helicopteros Nacionales de Columbis, S.A. v. Hall

3. specific jurisdiction

a. contacts with form related to dispute sought to be adjudicated

b. McGee v. Internat’l Life Insurance Co.

i. Life insured beneficiary (CA) sues insurer (non-CA resident) in

CA over breach of contract bought in CA

ii. single act sufficient for specific jurisdiction

c. Burger King Corp. v. Rudzewicz

4. no jurisdiction

a. Hanson v. Denckla

i. FL did not have jurisdiction over DE trustee when only contact

with state was person who owned trust moved there

ii. Court refused to enforce good faith and full credit upon DE on FL

judgment b/c FL lacked jurisdiction

5. Policy Reasons: Benefits of state go h-in-h with disadvantages=reciprocal duty



E. International Shoe Co. v. Washington (shoe salesman)

1. Facts: P, DE corporation, hire salesman in WA to exhibit shoes for sale. Shoe’s

headquarters are in MO and Shoe has no office or stock of merchandise in WA. WA

State wants unpaid taxes from Shoe.

2. Holding: The regular and systematic activities in WA by Shoe’s salesman were

sufficient to constitute doing business in the state so as to make appellant amenable

to suit in its courts. (satisfied minimum contacts for specific jurisdiction)

3. Rule: A non-resident can be served a summons for an in personam proceeding as

long as he maintains certain “minimum contacts” with the State such that the





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maintenance of the suit does not offend “traditional notions of fair play and

substantial justice.”

4. “Meaningful contacts, ties, or relations.”



F. Reasonableness Test—jurisdiction should not offend “traditional notions of fair play and

substantial justice.” Consider 5 factors:

1. burden on D

2. State’s interest in adjudicating dispute

3. P’s interest in obtaining convenient and effective relief if they don’t get forum

4. interstate judicial system’s interest in most efficient resolution

5. shared interest of several States in furthering substantive social policies



G. Stream of Commerce Theory

1. If a corporation delivers its products into the stream of commerce with the

expectation that they will be purchased by consumers in the forum State, then the

forum State does not exceed its powers under Due Process by asserting personal

jurisdiction.

2. This includes cases involving goods which reach a state via a chain of distribution.

3. This does NOT include cases where goods reach some State because a consumer

took them there.



H. World-Wide Volkswagen Corp. v. Woodson (Audi accident en route)

1. Facts. Robinsons (AZ) buy Audi in NY and get into an accident in OK. Robinsons

try to sue the VW regional distributor NY retail dealer in the district court of OK.

VW and dealer have no contacts with OK.

2. Holding. An OK court may not exercise in personam jurisdiction over a

nonresident automobile retailer and its whole sale distributor in a products-liability

action, when the D’s only connection with OK is that a vehicle was sold in NY to NY

residents who got into an accident in OK.

3. VW could not have reasonably foreseen litigation in OK. They did not enter their

goods into the stream of commerce there. A consumer’s unilateral act of bring D’s

product into forum State is not sufficient basis for personal jurisdiction over D.

4. Ps want Ds in litigation b/c Ds can’t remove case to federal court on complete

diversity grounds if they stay in (NY Ps and NY Ds).



I. Purposeful Availment (Hanson v. Denckla)

1. D must purposefully avail itself of privilege of conducting activities within forum

State, thus invoking the benefits and protections of its law.

2. Unilateral activity does not satisfy purposeful Availment (VW and Kulko)



J. Asahi Metal Industry Co. v. Supreme Court (defective tire)

1. Facts. Asahi (Japan) manufactured tire assembly in motorcycle that allegedly had a

defective tire in the accident of Zurcher in CA.

2. Holding: While Asahi could have foreseen that its product would find its way to

the US, it would be unjust to require a foreign company to defend itself in the US.

3. Reasonableness test showed that burden on D is too severe and CA’s interest in

dispute is slight—fails to confer “fair play and substantial justice.”



K. Long Arm Statutes

1. To determine if federal district court has jurisdiction over litigant, look to state’s

long arm statute. Why? FRCP 4K1a (BK)





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a. FRCP 4K1a states that summons or waiver of service is effective to

establish jurisdiction over a D who is subject to jurisdiction of court in state

in which district court is located.

b. If state jurisdiction is present, so is federal jurisdiction.



L. Burger King Corp. v. Rudzewicz (BK franchise)

1. Facts. BK (FL) sues MI franchisee in federal court of FL for failure to make

payments to BK. MI franchisee partner attended management courses in FL and

bargained to reduce rent in BK’s Miami headquarters.

2. Holding. Contract fulfills foreseeability of litigation and purposeful availment

3. Contract provisions conceding personal jurisdiction are not necessarily binding.

4. FL long-arm statute extends jurisdiction over contractual breaches involving FL.



M. Calder v. Jones (newspaper slander)

1. Facts. Reporter and editor wrote newspaper article about Jones, CA resident, and

distributed newspaper nationwide. Jones sued for libel and slander)

2. Holding. Reporter’s calls and distribution of paper nationwide fulfills minimum

contacts and CA has strong interest in protecting its residents.

3. CA long-arm provision extends to Due Process limits.



N. Keeton v. Hustler (Hustler defamation)

1. Facts. Keeton is not a resident of NH but sues Hustler for defamation in NH b/c

NH is the only state where the SOL has not run. Hustler distributes its magazine in

NH.

2. Holding: Hustler’s distribution of its magazine in NH satisfies the minimum

contacts test with that state, even though the reasonableness of the forum is pushing

the limits of the reasonableness test.

3. NH long-arm provision extends to Due Process limits wrt out-of-state corp.

4. D’s contacts are in question and not P’s contact with state.



O. Kulko v. Superior Court (divorce move)

1. Facts. Kulko and Horn marry in NY and then separate. Horn moves to CA with

children. Horn sues Kulko in CA state court for custody and child-support.

2. Holding. CA has jurisdiction over child support claim b/c (according to Pennoyer)

status cases can be brought in either state where parents or children live, but CA does

not have jurisdiction over child-support ($$ request) b/c Horn’s move constitutes

unilateral activity; Kulko does not benefit from CA.

3. Status cases can be tried in any state where status is concerned (Pennoyer).

3. Purposeful Availment requires bilateral activity (unilateral insufficient)



P. Helicopteros Nacionales de Columbia, S.A. v. Hall (Peruvian crash)

1.Facts. Helicopteros is a Columbian corp. whose helicopter crashed in Peru and

killed 4 Americans. Decendent’s survivors filed wrongful death suit in TX state

court. Helicopteros’s connections with TX include buying helicopters and training

pilots there. Peruvian consortium, for which deceased worked, contracted with

Helicopteros in TX.

2. Court held that Helicopteros was subject to general jurisdiction in TX because of

its continuous and systematic contacts with the state.

3. Note: TX may have been the only option for a US forum.



Q. Shaffer v. Heitner (Greyhound stock)





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1. Facts. In a shareholder’s derivative suit in DE court, Heitner sues Greyhound et al

(DE incorp.) and attaches Greyhound’s common stock. In DE, there’s no special

appearance, so if Greyhound appears, it falls under DE jurisdiction. If Greyhound

does not appear, there’s a risk that its common stock will be sold to pay judgment to

Heitner (Type II in rem proceeding).

2. Holding. Standard of minimum contacts and reasonableness now apply to both in

person and in rem jurisdiction, b/c in rem proceedings are really about a person’s

interest in property and not just property.

3. Problem: when long-arm statute doesn’t extend to person, type II in rem may have

been the only way to get payment. Now you rely exclusively on good faith and full

credit.



R. Burnham v. Superior Court of CA (in-state service)

1. Facts. Non-resident was personally served with process while temporarily in State

in a suit unrelated to his activities in that State.

2. Holding: All person who are found within the limits of a state government,

whether their residence is permanent or temporary, are to be deemed subjects thereof.

3. Shoe analysis (and Shaffer’s assertion) is a substitute for physical presence



S. Consent by appearance

1. Timely objection required; objection to personal jurisdiction easily waived.

2. Special appearance should be made known.

3. Refer to rule 12 for lack of jurisdiction defense

a. 12(b)2-assert in responsive pleading or by motion before responsive

pleading

b. 12(g)-may join defenses in motion (can’t raise sequentially)

c. 12(h)-waived if omitted from motion and pleading

d. 12(h)(1)-pleading can be amended under Rule 15a

4. If you decline to litigate (silence) b/c you are fairly certain that the State does not

have jurisdiction, you will lose on the merits and not be able to re-open the topic.



T. Territorial Jurisdiction Hypothetical

1. NY P sues PA D for tort in NY federal court. Tort involved P falling in D’s

apartment building in NY.

2. Waiver

a. analysis for lack of personal jurisdiction, improper venue, insufficiency of

process, and insufficiency of service of process

i. Rule 12(b)2 -in pleading or by pre-answer motion.

ii. Rule 12(h)1-in an amendment to pleading under Rule 15(a)

iii. Rule 12(h)1-otherwise waived

b. Waiver analysis for failure to state a claim & failure to join an

indispensable party

i. Rule 12(b)6-in pleading or by pre-answer motion

ii. Rule 12(h)2- motion any time during trial and in any pleading

iii. Cannot be raised on appeal

c. Reasons for waiver analysis

i. personal rights are for convenience (DPC)

ii. judicial rights are for fairness and justice

3. In personam Jurisdiction

a. Rule 4(k)1(a) says to look to state’s long arm statute: State has authority

i. NY civil procedure Rule 302(a)4 (p. 754)





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ii. CA §410.10 (p. 742)

b. Rule 4(k)1(b) If party impleaded under Rule 14 or 19 and served within

judicial district not more than 100 miles from where summons was issued,

service of summons is effective to establish jurisdiction.

c. State’s authority comports with DPC

i. Minimum contacts

1. purposeful availment

2. affect people in state (Calder v. Jones)

ii. Reasonableness factors

U. Notice

1. Due process in any proceeding is notice reasonably calculated to apprise interested

parties of pendency of action and afford them opportunity to present their objections

2. Form of notice should be either reasonably certain to inform those affected, or,

where conditions do not reasonably permit such notice, not substantially less likely to

bring home notice than other of the feasible and customary substitutes.

3.In Mennonite case, Court found that notice should have been sent to money lender

when lendee’s property was subjected to in rem proceedings even though only an

unspecific address was known.

4. Rule 4(i) and (j) outline notice for US and foreign government

5. Service on individuals: Personal service, dwelling house, mail, appointed agent,

complies with state law Rule 4(e)2

6. Service on corporations: waiver, state law, or summons to agent



V. Mullane v. Central Hanover Bank & Trust (trust settlement)

1. Facts: Trust was holding an equitable proceeding to settle trustee’s accountings for

that year. Beneficiaries were notified under generic description of trust and location

in local newspaper. Mullane appeared at court to object to notice.

2. Holding: Publication is unconstitutional notice of judicial settlement of accounts

when addresses are known of beneficiaries.

3. Publication is sufficient notice if person is missing or unknown or if the bank does

not know names and addresses.

4. If enough people are notified, then most people’s interests will be represented.

5. Jurisdiction by necessity: NY has personal jurisdiction over non-residents b/c no

one else does



III. SUBJECT MATTER JURISDICTION



A. State Courts

1. general jurisdiction

2. departments for specialized subject matter

3. Administrative agencies my have SM jurisdiction

4. concurrent jurisdiction over most federal law cases

a. not anti-trust, patents, copyright, and admiralty cases



B. Federal Courts

1. Limited Jurisdiction conferred by Article III of Constitution AND Statutes

a. Article III Section 2. “The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution…”

b. federal court subject matter jurisdiction includes

i. federal question

ii. admiralty





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iii. diversity of citizenship

iv. US as party

c. Article III Section 1.“The judicial Power of the US, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to

time ordain and establish.”

i. MUST be accompanied by statutory implementation

ii. statutory grant does not go to full extent authorized by Article III

2. Can NOT be waived

3. concurrent jurisdiction over cases involving state law if

a. federal law is involved (pleading-based)

b. diversity of citizenship

4. exclusive jurisdiction over anti-trust, patents, copyright and admiralty

5. may seek appellate review over state law cases

6. judges appointed for life

a. impeachment need two-thirds majority of congress

b. salary protected



C. Federal Question Jurisdiction

1. 28 USC §1331

a. “The district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws or treatises of the US.”

b. much more limited than Constitution allows

i. must be within state of claim

i. Appellate jurisdiction exists if question of federal law in defenses,

counter-claims, and anticipated defenses

2. Federal question is sufficient if

a. federal statute constitutes claim of action

i. expressed right of action

ii. implied right of action

b. implications of federal law constitute claim of action

c. state law and federal law constitutes claim of action and (see Grable)

i. federal law predominates (disputed and substantial)

ii. federal law essential

iii. fed/state lines of jurisdiction not disturbed

3. Reasons for federal issues in federal court

a. uniformity - federal statutes should be interpreted uniformly

b. expertise - knowledge on issues; quality of judgment

c. insulation from public debate - contested issues don’t affect life tenure of

judges

d. others

i. “protective” jurisdiction (federal government’s interest in litigant)

ii. sympathy to federal agencies



D. Well pleaded complaint rule (cite Mottley)

1. Federal question must be derived from state of claim in complaint.

2. A suit arises under the Constitution and laws of the US when the P’s statement of

his own cause of action shows that it is based upon those laws or that Constitution.

3. It is not enough that P alleges some anticipated defense to the cause of action and

asserts that defense is invalidated by some provision of the US Constitution.



E. Louisville & Nashville RR Co. v. Mottley (free RR transport)





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1. Facts: Mottley’s released negligence claim agst RR for free RR transportation for

life. Years later, federal statute forbids giving free transport. RR refuses to renew

Mottley’s pass. Mottley sues for specific performance in federal court. RR defends

itself using federal statute. Mottley responds statute violates 5th Amendment.

2. Holding: District court did NOT have SM jurisdiction b/c federal statute was an

anticipated defense of the RRs and not primary to P’s cause of action (breach of

contract) and her 5th Amendment argument is a defense to an anticipated defense.

3. Well-pleaded complaint rule arose from Mottley



F. Grable & Sons Metal Products Inc v. Darue Eng & Manufacturing

1. Facts: IRS seized and sold property of Grable to Darue to pay federal taxes. Grable

was notified by mail. Grable filed quiet title action in state court agst Darue

claiming his title was invalid b/c IRS did not serve personal summons as required by

federal statute. Darue tries to remove to federal court.

2. Holding: Federal court has SM jurisdiction over Grable’s claim because his cause

of action raises disputed and substantial federal issues.

3. Ask does a state-law claim necessarily raise a stated federal issue, disputed and

substantial, which a federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial responsibilities?

a. Is federal law an essential element of state law-claim?

i. P must prove notice was insufficient

ii. Federal statute for notice must be interpreted.

b. Grable Analysis: is a private cause of action created?

i. if no, dismiss unless issue is really important, doesn’t flood courts,

and disturb federal and state lines

4. Merrill Dow Case

a. Federal court denied hearing a state-law tort claim implicating federal law

b/c of increased volume of federal litigation and legislative intent



G. Diversity of Citizenship Jurisdiction

1. 28 USC §1332

a. §1332(a): $75K and citizens of different states, citizen of state and citizen

of foreign state, citizens of different state + foreign parties, foreign P and D

of different states

i. alien=citizen of state domiciled as permanent resident

ii. American citizen domiciled abroad can’t sue under §1332

b. §1332(b): stringent than same case or controversy

i. STOO > CNOF > SCOC

ii. Compulsory > Gibbs > Supp Juris

6. Motion to dismiss before answering claim means party does not waive any

compulsory claims (preclusion rules)-no pleading/answer



F. Rule 13 Counterclaim and Cross-claim

1. 13(g) Cross-claim against Co-Party Pleading may state as a cross-claim any claim

by one party against a co-party arising out of transaction or occurrence that is the

subject matter either of

a. the original action

b. or of a counterclaim therein

c. or relating to any property that is subject matter of original action

2. 13(g) Such cross-claim may include claim that party agst whom it is asserted is or

may be liable to cross-claimant for all or part of claim asserted in action agst cross-

claimant

3. always permissive

4. Rationale for relation “same transaction or occurrence” requirement

a. D haven’t chosen to be in court-not fair to double-whammy

b. Too complicated if Ds can cross-claim agst each other ~unrelated claims





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5. Note: if D1 makes a cross-claim agst D2 and D2 counterclaims, that counterclaim

falls under Rule 13(a) and (b), so the counterclaim may be compulsory.

6. Once D1 makes cross-claim agst D2 under 13(g), D can make unrelated claims

agst D2 under Rule 18(a).



G. Fairview Park Excavating Co. v. Al Monzo Construction Co.

1. Facts: P sues D1 and D2 in federal court on diversity grounds. D1 cross-claims D2.

D2 is dismissed from P’s original claim. What happens to D1’s cross-claim?

2. Holding: D1’s cross-claim agst D2 is not lost by dismissal of P’s claim against D2.

3. Jurisdiction, once attached, is not lost by subsequent events.

4. D1’s cross-claim was properly permitted by Rule 13(g), so supplementary

jurisdiction of D2 can’t be defeated by decision on merits adverse to P on P’s claim.



H. Rule 20 Permissive Joinder of Parties

1. 20(a) Permissive joinder: All persons may join in one action as plaintiffs or

defendants if

a. they assert any right to relief jointly, severally, or in the alternative in

respect of or arising out of the same transaction or occurrence or series

thereof and

b.any question of law or fact common to all persons will arise in the action

2. 20(a) A P or D need not be interested in obtaining or defending agst all relief

demanded.

3. 20(a) Judgment may be given for one or more Ps according to respective rights to

relief, and against one or more Ds according to their respective liabilities

4. 20(b) Court may prevent joinder of parties (order separate trials) to prevent

a. party from being embarrassed, delayed or put to expense

b. prejudice

5. Joinder of parties is permitted, but NOT required

6. If P wants to join claims and Ds, then 20(a) requires relatedness even though 18(a)

does not.



I. Kedra v. City of Philadelphia

1. Facts: Ps were abused by various policemen on several occasions over 1.5 years.

Ds include municipality, police officials, and police officers. Multiparty Ps sue

multiparty Ds jointly. Ds moved to dismiss for improper joinder.

2. Holding: Both Ps and Ds were properly joined under 20(a) requirements of same

series of transactions or occurrences and question of common law or fact, but Ds may

be separated due to potential prejudice under 20(b).

3. Systematic patter of conduct=series of same transactions or occurrences

4. Question of common fact: maybe same campaign to frame P? weak.

5. P’s claims agst Ds should be severed b/c various Ds were involved to varying

degrees but may be prejudiced by others.



J. Rule 19 Joinder of Persons Needed For Just Adjudication

1. 19(a) Persons to be Joined If Feasible If person is subject to service of process and

whose joinder will not deprive court of jurisdiction over subject matter of action

MUST be joined if

a. (1) relief can’t be accorded among already parties in his absence OR

b. (2) person’s interest is such that his absence will

i. impair or impede his ability to protect his interest or







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ii. the 3rd party will be subject to substantial risk of incurring

multiple or inconsistent obligations by reason of claimed interest.

2. 19(a) Court can order person joined

3. 19(a) If person refuses to be joined as P, court may make person D or an

involuntary P

4. 19(a) If party objects to venue and his joinder makes venue improper, he must be

dismissed from action.

5. 19(b) Determination by Court Whenever Joinder Not Feasible

1. If person under 19(a)1-2 cannot be made a party, Court shall decide if

action should proceed or be dismissed.

2. Court should consider the following factors

a. absent party’s prejudicial effects to current parties

b. extent to which prejudice can be lessened or avoided

c. adequacy of a judgment rendered

d. adequacy of remedy if action dismissed

6. 19(c) Pleading Reasons for Nonjoinder Names of persons described under 19(a)1-

2 and reasons not joined shall be asserted in pleading.

7. Necessary parties are those who should be joined if feasible under Rule 19(a).

a. incomplete relief

b. impaired or impeded interest

c. double, multiple or inconsistent obligations

8. Indispensable parties are those who MUST be joined under Rule 19(b)-dismissed.

9. Feasible requirement may include

a. too many absent parties (impracticable)

b. no personal jurisdiction

c. immunity (Indian tribe)

d. defeats diversity jurisdiction

10. 19(b) test is similar but more stringent than that of 19(a)

11. Supplemental jurisdiction not available for parties joined under Rule 19.



K. Rule 13(h). Joinder of Additional Parties: Persons other than those made parties to

original action may be made parties to a counterclaim or cross-claim in accordance with

Rules 19 and 20.



L. Temple v. Synthes Corp.

1. Facts: Temple has a screw implanted in her back that breaks off. Temple sues

manufacturer in federal court and doctor and hospital in state court. Manufacturer

filed motion to dismiss for failure to join necessary parties under Rule 19. Court gave

Temple 30 days to join doctor and hospital. Temple did not and Court dismissed.

2. Holding: Joint tortfeasors are permissive parties-not necessary, much less

indispensable.

3. All three Ds could have been joined under Rule 20(a)-same transaction or

occurrence: screws or implantation caused problem.

4. Manufacturer could have impleaded Dr and hospital under Rule 14(a), but did not

most probably b/c they wanted dismissal due to SOL running in state court.



M. Rule 24 Intervention

1. 24(a) Intervention of Right Timely applications to intervene are permitted when

a. statute confers unconditional right to intervene; or









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b. applicant claims interest relating to property or transaction which is

subject of action AND would be impaired or impeded from protecting that

interest if not there (existing parties may adequately represent other interests)

i. similar to Rule 19(a)2(i)

2. 24(b) Permissive Intervention Timely applications to intervene are permitted when

a. statute confers unconditional right to intervene; or

b. applicant’s claim or defense and main action have a question of law or fact

in common

c. court has discretion whether delay or prejudice outweighs intervention

3. 24(c) Procedure Rule 5 provides procedure-file pleading



N. Rule 4(k)1(b) Territorial Limits of Effective Service

1. Bulge Jurisdiction: Service of summons or filing of waiver of service is effective

to establish jurisdiction over the person of a D (B) who is a party joined under Rule

14 or Rule 19 and is served at a place within a judicial district of the US and not

more than 100 miles from the place from which the summons issues



O. Helzberg’s Diamond Shops

1. Facts: Helzberg leased shop space from mall with restrictions on mall leasing to

other jewelers. Mall tried to breach contract by leasing to lessee. P sued mall for

injunctive relief in federal court based on diversity. Mall moved to dismiss for failure

to join lessee under Rule 19. Lessee was not reachable under long-arm statute.

2. Holding: Lessee was a necessary party because his interests would be impeded or

impaired as a practical matter under 19(a)1, but Court did not have jurisdiction over

lessee. Lessee was not found to be an indispensable party, however, under 4 factor

balancing test in 19(b) and b/c he could have joined if he so chose under Rule 24.

3. If lessee was impleaded under Rule 19 by Court or Rule 14 by D, bulge

jurisdiction under Rule 4(k)1(b) may have granted territorial jurisdiction if within

100 miles.

4. Lessee could have joined under intervention Rule 24 to protect his interests.



P. Rule 14 Third-party practice

1. 14(a) D may serve third-party D. Third party D may

a. answer third-party complaint

b. assert any defenses agst original P

c. counterclaim agst third-party P

i. Rule 18(a) allows third-party P to make unrelated claims agst

third-party D

d. cross-claim agst any co-third party D

2. 14(b) If original P makes claim agst third-party D, P makes D a co-D and is subject

to “same transaction or occurrence” requirement under Rule 20(a)

a. Supplemental jurisdiction applies to a P agst an impleaded third party D IF

federal law question §1367(a) but NOT for diversity §1367(b)



Q. Owen Equipment & Erection Co. V. Kroger

1. Facts: Kroger was electrocuted when crane contacted high-tension electric power

line. Wife (P) filed wrongful death suit agst crane company (D) in federal court

based on diversity. D filed third-party complaint agst Owen (3rd-D) under Rule

14(a). D moved for summary judgment. P took leave to add 3rd-D as co-D. Co-D

and P are non-diverse. Co-D moves to dismiss for lack of jurisdiction.







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2. Holding: P cannot assert nonfederal claim agst a nondiverse third-party D when

original action was based on diversity of citizenship.

3. P unable to recover b/c SOL has run in state court; P’s lawyer=malpractice

4. Rationale: P could have gone to state court; D can bring claim agst non-diverse

third party D b/c D didn’t choose to be in court in the first place

a. If P collusively or improperly joins Ds to invoke jurisdiction, P can be

reprimanded under 28 USC §1359.



R. Rule 23 Class Actions

1. 23(a) and (b) seek to describe in which cases class action will be permitted by

evaluating prospective benefits of class suit relative to disadvantages:

a. numerosity (joinder is first choice; class action is 2nd choice)

b. commonality (at least 1 common Q of law or fact)

c. typicality (rep’s claims and defenses typical of class)

d. adequacy of rep. (conflict of or differing interest=no class action)

2. 23(c)-(h) define scope of judgment and fairness

a. 23(b)1 and 2: non-opt out class actions=mandatory membership; no notice

b. 23(b)3: opt-out class actions=optional membership; notice mandatory

c. 23(c): certification, counsel appointment, notice, formal judicial review

and fees

d. 23(d): judge gets lots of discretion

e. 23(e): settlement must be approved

f. 23(f): interlocutory appeal of certification decision



S. Exxon Mobil Corporation v. Allapattah Services, Inc.

1. Facts: 10K Exxon dealers filed class-action agst Exxon for overcharging fuel in

federal court under diversity jurisdiction. D appealed b/c class members did not

meet minimum amount in controversy requirement.

2. Holding: As long as one named P in class action satisfies amount-in-controversy

requirement, §1367 does authorize supp juris over claims of other Ps in same case or

controversy.

3. §1367 does not withhold claims arising under 23-not an exception!

4. Contamination theory: one nondiverse P contaminates complete diversity and supp

jurisdiction

5. Indivisibility theory: failure of Ps to meet amount-in-controversy requirement does

not undivide them under supp juris as long as at least one P satisfies requirement

6. Dissents argued for less disruptive interpretation of §1367: ALL Ps or class

members should meet a-in-c requirement; don’t sever diversity from a-in-c

7. Majority weighted wording over legislative intent



T. Ortega (starkist tuna)

1. Facts: Girl sued Star-Kist in federal court based on diversity action for injuries

from tuna can. Girl was joined by parents seeking damages for distress and medical

expenses. Girl met a-in-c requirements but parents did not.

2. Holding: §1367 authorized supp juris only when court has original jurisdiction

over action, which requires each P to satisfy a-in-c requirement.

3. Over-turned so that co-Ps need not satisfy a-in-c requirement b/c co-Ps are

permissively joined under Rule 20(a) and satisfy the same series of occurrence and

common question of law or fact requirements.

4. §1367 did NOT speak of joined Ps, so this is not an exception to §1367(b)

5. Note: joined Ps must still meet complete diversity requirements for §1367





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U. Hypothetical.

1. Three person crash: P1 (MA) sues D(MA) in federal court based on diversity for a

$100K claim; Third person added as co-P under Rule 13(h). Rule 13(h) points to

Rule 19 that identifies P2(MA) as an indispensable party. P2 sues Final make-up is

P1 (MA) and P2 (MA) jointly sue D(NY).

2. P1 and P2 are non-diverse so



V. Hypothetical. (11/02/05)

1. DE corporation with principal place of business known as Widgets by mail sends

catalog to CA resident, P. P orders widget by credit card via mail. Widget is not high

performance as claimed, so she sues company in CA state court for $2K on state

claim and $10K on federal question claim (Widget Act).

(CA)

P 3rd P



FQ SL SL SL

$100 $50

K K

D

(NY, DE)



2. Widget removes to federal court. Proper?

a. Federal court has jurisdiction over federal question under §1331

b. Federal court has jurisdiction over state law claim under §1367(a)

i. state law claim meets relatedness requirement

c. D can remove to federal court under §1441(a)

d. P can not move back to state court once suit properly removed.

3. D moves to dismiss based on territorial jurisdiction. Win?

a. Rule 4(k)1(a) refers us to CA long arm statute

b. CA LAS extends to outer boundaries of DPC

c. Company reached into state by sending catalog and sending product

i. minimum contacts satisfied

ii. unreasonableness fails

4. P calls D and says terr juris motion is meritless under what rule?

a. P threatens sanctions under Rule 11.

b. D replies saying service of process was not personal as required by

Pennoyer (he’s unaware of Shoe).

c. P says that legal contentions are not warranted under Rule 11(b)2

5. D wants to shift location to another federal court under what rule?

a. Transfer of venue under §1404(a)

b. Check whether venue is proper under §1391(a)

i. any D resides?

ii. substantial part of events giving rise to claim occurred?

6. D asserts counterclaim against P and against NPR radio under state law for

defamation from years ago under which rules?

a. Counterclaim agst P=13(b) permissive joinder

i. subject matter juris ok b/c diversity if a-in-c > $75K







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ii. if no diversity, same transaction or occurrence may not be met

under §1367(a)

b. Additional party (NPR) can be added to a counterclaim or crossclaim

under Rule 13(h) in accordance with Rule 20(a)

i. Rule 20 met: same transaction or occurrence and common question

of law or fact as counterclaim

ii. if claim for $50K, no independent jurisdiction

iii. Supp juris allows claim to be attached to $100K counterclaim

A. D is making claim

B. §1367(b) restricts Rule 20 joinder by P

C. according to Allapatah, joined claims under supp juris do

not need to meet a-i-c requirement independently

VI. DISCOVERY



A. Functions of discovery

1. accurate trial outcomes by fuller disclosure

2. promotion of settlement

3. summary judgment more effective



B. Rule 26 General Provisions Governing Discovery; Duty of Disclosure

1. 26(a)1 Required Disclosures

a. contains contact info of people for discovery, copies of documents,

computation of damages, insurance agreements

b. mandatory disclosure includes information that reporting party “may use

to support its claims and defenses”=favorable to its case

2. 26(b) Discovery Scope and Limits

a. 26(b)1 In General Any matter, not privileged, which is relevant to any

claim or defense of any party”—sought information needs to “appear to be

reasonably calculated to lead to discovery of admissible evidence”

b. 26(b)2 Limitations information requests may not unreasonably burden

c. 26(b)4 Trial Preparation: Experts

3. 26(c) Protective Orders may be ordered against

a. Broad, threatening, or costly discovery propositions

b. Party must confer first before making motion

4. 26(d) Timing and Sequence of Discovery Discovery begins after discovery plan

26(f); info can be sought in any order chosen

5. 26(e) Supplementation of Disclosures and Responses

a. party must supplement disclosure if party learns that material info

disclosed is incomplete or incorrect and additional or corrective info

unknown to other party

b. party must amend response to interrogatory, request for production or

request for admission if response incomplete or incorrect materially and

unknown to other party

6. 26(f) Conference of Parties; Planning for Discovery

a. propose discovery plan contains

i. proposed changes to mandatory disclosures under 26(a)

ii. description of parties’ views on subjects & timing of discovery

iii. proposed changes in limitations of discovery

b. hold meeting within 21 days prior to final deadline of issuance

i. Rule 16 sets deadline of issuance to be 90 days after D’s

appearance or 120 days after D was served complaint





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c. submit written report 14 days after meeting

7. 26(g) Signing of Disclosures, Discovery Requests, Responses and Objections

1. 26(g)1 required attorney signature (at least 1) constitutes certification of

signor’s knowledge and belief, formed after reasonably inquiry, the

disclosure is correct at time of making.

2. 26(g)2 Signature required on every discovery request, response, objection

3. 26(g)3 If certification violates rule, court or motion to court may impose

an appropriate sanction (amount of reasonable expense incurred due to

violation, including reasonable attorney’s fee)

i. sanctions are MANDATORY when rule violated



C. Rule 30 Depositions

1. Rule of thumb: attorney will depose all important, unfriendly witnesses

2. 30(d)1 Limited objections to deposition

a. preservation of privilege

b. enforcement of protective order limiting discovery

c. abusive behavior

3. 30(d)3 court may impose sanctions if attorney frustrates fair exam



D. Rule 33 Interrogatories to Parties (usually seeking hard info)

1. 33(a) limited to 25 interrogatories

2. 33(b)1 Written Qs must be answered separately and fully in writing under oath

3. 33(b)4 Objections stated with specificity



E. Rule 34 Productions of documents and things

1. 34(a) produce documents or things relevant to issue

2. 34(b) no limits; leave of court not required

3. non-party may be compelled to produce documents or things



F. Rule 35 Physical and mental exams

1. 35(a) good cause shown: likely to lead to evidence for issue in case

2. 35(a) suitably licensed or certified examiner: MD, psychologist

3. 35(b)1 comparable exams underwent from other experts must be turned over



G. Rule 36 Requests for Admission

1. usually aim at secondary facts likely to be uncontested

2. 36(a) no objection within 30 days=admitted

3. 36(a) objections requires reasons

4. 36(b) effect of admission: admitted conclusively establishes truth for litigation



H. Rule 37 Failure to Make Disclosure or Cooperate in Discovery; Sanctions

1. 37(a)2 Party may seek motion to compel compliance with discovery request

2. 37(a)2 Moving party must in good faith attempt to confer with person or party

3. 37(a)4(B) attorneys fees can be awarded



I. Example of discovery process

1. Request interrogatories first Rule 33

2. Document request second Rule 34

3. Check if document request is relevant under 26(b)1

4. Lawyer confers with lawyer to compel production Rule 37(a)2(b)

5. Opposing side motions for protective order—too broad/costly Rule 26(c)4





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I. Washington State Physicians Insurance Exchange & Association v. Fisons Corp.

1. Facts: Pollock child suffers medical problems from treatment of asthma with drug.

Pollocks sue drug company and doctor and doctor cross-claims agst company. In

discovery, doctor and Pollocks use interrogatories and document requests about drug.

Company withholds relevant information not “precisely” requested. Note sent to

doctor of withheld information. Doctor moves for sanctions agst company.

2. Holding: Company’s misleading and evasive responses to interrogatories and

document requests requires that court sanction company for discovery abuse.

3. Discovery response was evaluated under 26(g) standards using an objective

standard; sanctions were mandatory under Rule 26(g)

4. Requesting party could have been more precise and figured out dodgy responses

5. Amount of sanction settled for was well below attorney’s fees and services.



J. Fed. R. Evid. 501 and 612

1. 501. General Rule on Privileges: Recognition of a privilege based on confidential

relationship should be determined on a case-by-case basis by either common law or

State law depending on rules of decision.

2. 612. Writing Used to Refresh Memory: If a witness uses a writing to refresh

memory for the purpose of testifying while testifying (or before testifying if court

deems necessary in interest of justice), then the document becomes evidence at trial.

a. Privilege of documents is waived by showing witness

b. Reason is that document added to her refreshed memory, and opposing

counsel has right to see document to determine sincerity of acute memory



K. Rule 26(b)5 Claims of Privilege or Protection of Trial Preparation Materials

1. If you withhold otherwise discoverable information by claiming it’s privileged,

you must disclose what and why you’re withholding.

2. Note Rule 26(b)1 specifies that parties may obtain discovery regarding any matter,

not privileged, that is relevant to…

3. In practice, privileged documents are color-coded and filed separately, b/c you

don’t want to give other side privileged material, thereby waiving privilege.



L. Attorney-Client Privilege

1. Basis for privilege

a. advocacy: lawyer will give better advice if lawyer fully understands facts

b. client’s awareness will encourage full disclosure

c. client will follow advice given

i. want clients to comply properly with law

2. Scope of privilege

a. by: one who sought or is a client

b. to: assertion made to person who is

i. member of bar or his subordinate

ii. acting as a lawyer wrt communication

c. how: communication relates to fact which attorney was informed

i. by his client

ii. without presence of strangers (CONFIDENCE)

iii. for purpose of securing either

A. an opinion on law or

B. legal services or

C. assistance in some legal proceeding





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iv. Crime: NOT for purpose of committing a crime or tort

v. Lawyer-client disputes and lawyer self-protection allows lawyer

to disclose privileged information to defend himself.

d. if: privilege has been

i. claimed

ii. and NOT waived by client

e. privilege protects communication but not facts, so privilege is really only

useful if other side is not aware of existence of certain facts

3. Waiver

a. Privilege can be waived by either

i. voluntarily disclosing or (accidentally)

ii. failing to claim privilege

b. Privilege can NOT be overcome by showing that information is not

available from any other source.

4. Confidentiality duty is broader than privilege but less protected

a. extends to all info in all settings

b. ethical responsibilities can permit attorney to disclose

5. Other types of privilege:

a. executive (president’s people)

b. doctor-patient

c. priest-parishioner

d. work product



M. Upjohn v. US

1. Facts: Upjohn was investigated for bribes to foreign government officials.

General Counsel, Thomas, conducted internal investigation using a “highly

confidential” questionnaire identifying him as such. Securities and Exchange

Commission requested the questionnaires and Upjohn declined to produce them on

grounds of attorney-client privilege.

2. Holding: Documents produced by a company lawyer during a company

investigation for purpose of anticipated litigation are protected from disclosure by an

extended attorney-client privilege

3. History: attorney-client privilege is old b/c full/frank communication

encouraged; sound legal advice / advocacy depends on lawyer being fully informed

4. Corporations used to create “control group test” to determine whose information

was entitled to attorney-client privilege; lots of uncertainty

5. Even though employees were outside “control group”, they rendered information

under the impression that it would be protected.



N. Rule 26(b)3 Trial Preparations

1. Party may not obtain in discovery material prepared in anticipation of litigation or

for trial of for another party or by of for that other party’s rep unless

a. party seeking discovery has “substantial need” of materials in preparation

b. AND party is unable to obtain substantial equivalent by other means

without undue hardship.



O. Work Product Immunity

1. codified in Hickman

2. opinion work product is highly protected (may not be accessible)

3. Comparing work-product doctrine and attorney-client privilege







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Work-product doctrine Attorney-Client Privilege

protects only materials prepared for litigation protects communications made in connection

with legal advice, related or not to litigation

Covers info from sources other than client, Only attorney-client exchanges

notably witness statements and document

compilations

Can be overcome if info cannot be obtained No exception based on unavailability of info

from any other source or requires great from other sources

difficulty

Time period covered includes only discovery Time period covered is throughout litigation

Mental impressions, conclusions, opinions, or All of the information is protected btw attorney

legal theories (notes jotted down) are more and client

highly protected than say an interview

transcript

Don’t waive protection when a third party gets Can waive protection if a third party gets hold

hold of information (it can be waived); waiver of information (discuss in front of a third party,

of disclosure standard-only when it’s likely that for example); focuses on specialness of

other side gets it relationship



P. Hickman v. Taylor

1. Facts: Tug owners hired law firm to defend them agst potential suits re: deaths in

tug boat sinking. Public hearing was held with testimony from survivors. Tug lawyer,

Fortenbaugh, privately interviewed survivors and others in preparation for litigation

and wrote down his private thoughts. Representative of deceased sued in federal

court and requested such copies of statements and memos. Fortenbaugh refused.

2. Holding: Lawyer’s oral and written statements of witnesses secured by an adverse

party’s counsel in the course of preparation for possible litigation after a claim has

arisen is protected by work-product doctrine.

3. Reasons for Court’s holding include:

a. witnesses were available for deposition/public testimonies available

b. no proper showing of necessity of production

c. unfairness and inefficiency in adversarial system

d. no claim of substantial need

e. forcing attorneys to write down thoughts would endanger attorneys

i. accusations of lying, bias

ii. wits to form legal strategy not his own



Q: Summary Judgment

1. Types of dismissal motions

a. Rule 12(b)6 Failure to state a claim

i. assumes all allegations are true in pleadings

ii. motion raised any time

b. Rule 56 Summary judgment

i. assumes all allegations are true from discovery

ii. motion raised before trial

iii. substantive standard: could a reasonable jury find for P?

A. burden of production related to burden of persuasion

When moving party is D (see Anderson)

B. P can also move for summary judgment (less common)

-burden highly demanding







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c. Rule 50 Judgment as a matter of law

i. during and post-trial motion

ii. substantive standard: same as that of summary judgment

2. In general

a. avoids costs of trial if not necessary

b. balance btw avoiding wasteful trials and curtailing valuable opportunities

to decide cases with more evidence

c. partial summary judgment allowed

d. no genuine issue of material fact is linked to question of whether a

reasonably jury could be justified in finding elements to be true

e. summary judgment motions are not appealable b/c not final orders



3. Summary Judgment Trilogy

a. Celotex Corp. v. Catrett, 1986

i. D moves for SJ by pointing to places in record that show that P

does not have evidence to justify reasonably jury finding: “properly

supported”

ii. P is required to put something in opposition of motion beyond

pleading (discovery products)

iii. D files reply in further support of SJ motion

b. Anderson v. Liberty Lobby, 1986

i. D moved for SJ against a P suing public figure in libel suit

ii. P’s reply was held to heightened burden for SJ motion, b/c jury

would have to find “clear and convincing evidence”

iii. > preponderance of evidence

c. Matshshita Elec. Indus. Co. v. Zenith Radio Corp., 1986

i. Antitrust case had some implausible facts so P was held to a

heightened standard of “more persuasive” evidence



R. Rule 56. Summary Judgment

(a) Timing P: P can file SJ 20 days after complaint filed

(b) Timing D: D-any time

(c): there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.

i. questions of fact based on documents; paper record alone

ii. affadavits, products of discovery allowed

iii. quality of evidence=admissible at trial

iv. interlocutory summary judgment on issue of liability also allowed

(e) moving party must provide evidence (affidavits +) to show that there is no

genuine issue for trial (pierce the pleading—go beyond pleading)

i. must be admissible evidence

ii. no heresay-witnesses’ affidavits must be personal knowledge

iii. if adverse party doesn’t respond, SJ may be entered agst party

(f) nonmoving party entitled to full discovery



S. Colston v. Barnhart

1. Facts: Barnhart (white) pulled over Fields and Colston (black). Colston lied and

resisted Colston’s demands (tried to flee). Barnhart shot Colston. Colston sued cop

for violation of 4th amendment right (excessive force). Trial court denied summary

judgment motion based on qualified immunity upon viewing videotape of events.

Cop appealed. This is an example of interlocutory appeal=collateral order doctrine.





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2. Under 4th amendment, deadly force can be used if:

a. necessary to stop P from escaping and

b. P posed a significant threat

c. D could not feasibly give warning.

3. To negate qualified immunity doctrine, P must show that

a. a clearly established right was violated and

b. D should have been aware that his conduct was unlawful under

circumstances

4. Holding: Summary judgment granted because qualified immunity doctrine applied

b/c the cop was objectively reasonable in shooting Colston.

5. Dissenter claims that the question of whether cop reasonably shot Colston was

debatable and a question for the jury (warning feasible?, signficiant threat?)

6. Dissenter also claims that court had no jurisdiction b/c interlocutory appeals are

allowable for questions of law-not fact.



T. Pre-trial practices

1. Rule 12. Dismissals based on pleadings

a. Failure to state a claim Rule 12(b)6 (before pleadings complete)

i. aka demurrer in state court

b. Judgment on pleadings under Rule 12(c) (after pleadings closed)

2. Rule 41. Dismissal of Actions

a. by plaintiff voluntarily

i. 41(a)1(i): notice before answer or motion of SJ

A. without prejudice first time

B. with prejudice thereafter

ii. 41(a)1(ii): filing stipulation of dismissal signed by parties

A. no limits to dismissals w/o prejudice

b. 41(1)2: by order of court

i. court deems dismissal proper (unfairness to D)

ii. reversed only if abuse of discretion

iii. generally not allowed if D filed counterclaim

iv. without prejudice

c. 41(b): Involuntary dismissal: effect thereof

i. D makes motion for dismissal

ii. with prejudice

d. 41(d): court may make P pay costs of action

e. Note: Rule 41 does not govern whether P can bring claim in same court

i. governed by nature and scope of federal rules and

ii. Rules enabling act

3. Rule 55. Default and default judgments

a. 55(a) Entry of default does not terminate case; may be set aside

b. 55(b)1 Automatic judgment by default by clerk when

i. failure to make an appearance and

ii. D is not a minor or incompetent

iii. MUST be for a fixed sum of money

c. 55(b)2 P requests default

i. D gets notice of application

ii. “prove-up” requires evidence of damages

iii. 54(c) award can’t exceed requested in complaint

d. Rule 60 Relief from default judgment

i. Mistake, excusable neglect





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e. Hypothetical: Carnes sues Dawson in federal court for $80K. Dawson

moves for 12(b)6 and is denied. Dawson then fails to answer complaint

within time set by 12(a). Can the clerk enter a default judgment?

i. no, b/c Dawson appeared in court

f. Hypothetical: Carne shows in his “prove-up” that damages are a $100K.

Can he recover $100K in stead of $80K?

i. no, b/c 54(c) limits recovery to complaint amount

4. Rule 16. Pretrial Conferences (re: settlements)

a. 16(a)5 says settlement is one purpose of pretrial conference

i. eases crowded docket

ii. superior form of justice

b. 16(c) compels lawyers and parties to attend pretrial conferences

c. 16(f) sanctions for failing to attend

5. Rule 68. Offer of Judgment

a. If judgment finally obtained is not more favorable than offer, offeree must

pay costs incurred after making offer (made by D)

b. If nothing recovered at trial, rule does not apply

c. Hypothetical: Smith sues Jones for damages in federal court. On June 1,

Jones offers $75K. Smith rejects offer.

i. Jury awards Smith nominal damages of $1.00.

-Smith pays costs incurred post-June 1

ii. Jury returns verdict for D

-Smith pays nothing

iii. Jury award Smith $80K in damages

-Smith pays nothing

6. Rule 16. Pretrial Conference (re: scheduling and content)

a. Examples of content of pretrial order

i. undisputed issues, witnesses, exhibits, settlement discussion

ii. scope and admissibility of resolved issues

iii. limiting numbers of fact or expert witnesses

b. Pretrial order supersedes pleadings

c. Rule 16(e): modified only to prevent manifest injustice

i. unlike liberality of 15(b) pleading amendments

ii. Rule 26(a)3 indicates pretrial disclosures



VII. JUDGE AND JURY



A. Right to Jury Trial

1. Seventh Amendment right

a. suits at common law with a-i-c > $20

i. not equitable relief

ii. examples are tort and property claims

2. Rule 38. Jury Trial of Right

a. 38(b) may demand trial by jury by

i. serving a demand up to 10 days after last pleading served

ii. filing as described in Rule 5(d)

b. 38(d) failure to serve or file waives right to jury

3. Rule 39. Trial by Jury or by Court

a. On motion, court may choose to relieve party of waiver

b. Advisory jury can be empanelled where issues are not jury triable.







30

B. Selection of Jury

1. Venir (assembly of jury panel)

a. shall be selected at random from fair cross section of community

b. no citizen excluded on account of race, color, religion, sex, national origin

or economic status

i. minorities are significantly under-represented

ii. failures to respond, exclusions, exccuses

2. Voir dire (actual jury chosen from panel)

a. excuse for cause

i. exam revealed bias based on family or business relation or

personal knowledge of disputed events

ii. judge decides

b. peremptory challenge

i. in federal court, each party gets 3 (28 USC §1870)

ii. no reason needs to be given for challenge

3. Rule 47. Selection of Jurors

a. 47(a) Court or attorneys may conduct examination

b. 47(b) 28 USC §1870 says 3 peremptory challenges

c. 47(c) Court may excuse juror for good cause

4. Rule 48. Number of Jurors—Participations in Verdict

a. Six-twelve jurors

b. verdict shall be unanimous unless stipulated otherwise

c. all participate in verdict unless excused (47c)



C. Edmonson v. Leesville Concrete Co.

1. Facts: Black male sues employer for negligence and invokes right to jury trial.

Employer used 2/3 peremptory challenges to remove black persons from jury. P

requested race-neutral explanation. Request was denied. P appealed.

2. Holding: Race-based exclusion violates equal protection rights of challenged

jurors and those Constitutional rights extend to private litigants.

3. Constitution restrains government actions, while statutes and case law restrain

private citizens. In some instances, private persons can act as state actors.

4. Separately, one can argue that a jury is a state actor by making case law.

5. Dissenter Scalia argues that new rule hinders minority litigants who are also

prevented from using race-based strikes.

6. In practice, race-based peremptory strikes have not been successfully challenged.



D. Rule 50. Judgment as a Matter of Law

1. Judge enters verdict as judgments as matter of law now.

a. judge used to enter a “directed verdict” if pre-jury verdict

b. or a “judgment notwithstanding verdict” if post-jury verdict

2. 50(a) Motion for JMOL may be made any time before submission of case to jury

3. 50(b) Renewed motion may only be made if original motion made before case was

submitted to jury

4. Sufficiency of evidence is linked to burden of persuasion

a. review all evidence on record

b. draw all reasonable inferences in favor of non-moving party

c. do not make credibility determinations or weigh evidence

5. For practical reasons, judge usually grants post-verdict motions

a. if pre-verdict and appellate court finds error, new trial

b. if post-verdict and appellate court find error, verdict #1 can be reinstated





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E. Simblest v. Maynardu

1. Facts: During a power failure, P and fire engine collided in an intersection. P did

not hear sirens or see lights, but witnesses did. Judge set aside jury verdict and

entered judgment as a matter of law. P appealed.

2. Holding: Judgment as a matter of law was appropriate b/c P was contributorily

negligent as a matter of law.

3. State and federal standard for judgment as a matter of law differed. State standard

excludes judge from considering contradicted or impeached evidence, while federal

standard requires that evidence be viewed in light most favorable to D. (see Erie)

4. Judge stole issue of fact (whether P looked right) from jury.



F. Sioux City & Pacific Railroad Co. v. Stout

1. Facts: boy sued RR to recover damages for injury sustained on RR turntable. Trial

court judge entered judgment as a matter of law for RR. P appealed.

2. Holding: The jury should determine duty and standard of care in tort claims, even

if the facts are undisputed as here.

3. Reasonable minds could differ as to whether the RR was negligent.

4. Usually questions of fact go to jury and of law go to judge; here’s an exception

5. Juries can understand due care in negligence claims (install a latch)



G. Rule 51. Instructions to Jury

1. Objections to jury charge must be timely and error must NOT be harmless

a. 51(c) Timeliness means

i. if charge known, before jury instructions delivered under 51(b)2

ii. if charge unknown, as soon as you find out-promptly

c. 51(d) Assigning error-should affect substantive rights

2. 51(a) and (b) allow attorney to file written request for instructions



H. Rule 49. Special Verdict and Interrogatories

1. 49(a) special verdict: jury finds specifically on all issues essential to P’s case

2. 49(b) general verdict: jury fills out written interrogatories on 1+ issues

3. Usually, special verdicts help D.

a. structure jury decision-making (less emotionally driven)

b. bifurcate issues in case (affects jury analysis)

4. When inconsistent with verdict, judge must reconcile



I. Rule 61. Harmless Error

1. No new trial or post-verdict JMOL if error is harmless

2. Court disregards any error or defect which does not affect substantial rights

of parties.

3. Never grounds for review



J. Rule 59. New Trials; Amendment of Judgments

1. 59(a): new trial awarded on any grounds it’s already been awarded

a. common grounds: weak evidence, improperly admitted evidence,

improper conduct or argument during trial, error in instructions, other

b. less common grounds: newly discovered evidence, jury misconduct

2. Standard is “great weight” of the evidence



K. Comparison between Rule 50 and Rule 59





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1. New trial requires less proof than JMOL.

a. new trial: prove “great weight” of evidence is complex/disputed

b. JMOL: prove no evidence allows a reasonable jury to find for P

2. New trial=deferential analysis; JMOL=de novo analysis



JMOL NEW TRIAL

Time for Party Motion 10 days after judgment entered 10 days after judgment entered

Condition Precedent Yes-motion made at close of New Trial-none

all evidence

Judge limited to granting Yes No, court may grant a new

relief in cases where post- trial on its own motion

trial motion requested?

Standard for granting relief No legally sufficient Against great weight of the

evidentiary basis for a evidence for liability

reasonable jury to have found

a verdict winner

Standard of review on Sufficiency of evidence raises Whether trial judge abused

appeal an issue of law reviewed de discretion in applying “great

novo; same std as trial judge; weight” std; discretionary

no credibility of witnesses or

weighing of evidence



L. Spurlin v. General Motors Corp.

1. Facts: School bus crashed when brakes failed. P’s theory of the case involved GM

installing different braking system, emergency break, and warning light. Jury

returned verdict for Ps awarding damages. Court granted D’s post-trial motion for

JMOL and new trial on ground that verdict was not supported by the evidence.

2. Holding: Jury could have reasonably concluded from the evidence that GM

breached its duty as manufacturer, so JMOL should not have been granted. While the

issues were complex in the case, juries routinely decide them, so no new trial.



M. Motions influencing jury award of damages

1. Excessive or Inadequate verdicts

a. imprecise damages (media involved)

b. amount awarded not supported by evidence

2. Remittur: new trial conditioned on P consenting to reduced damages

3. Additur: new trial conditioned on D consenting to increased damages

4. Punitive damages: limits based on extent of D’s conduct and severity of harm

5. Federal standard for excessiveness is “shock the conscience”



N. Non-jury trial

1. procedurally more flexible than jury trial

2. streamlined (no voir dire)

3. Rule 52. judgment shall not be set aside unless clearly erroneous



O. Rule 58. Entry of Judgment

1. judgment entry dictates time of appeals, post-trial motions

a. terminates power of court (res judicata)

b. determine time of appeal commencement

c. issuance of writ of execution







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d. triggers times of post trial motions (50 & 59)

2. Clerk notes in “civil docket” judgment has been rendered

a. if case simple, clerk can prepare, sign and enter judgment

b. If special verdict, general verdict with interrogatories, or a more

elaborate judicial decision, court must approve before clerk enters



P. Rule 54. Judgments; Costs

1. 54(b) direct entry of judgment on fewer than all claims allowed

a. clashes with final judgment

b. fair to parties that drop out of claim

2. 54(d) costs; attorney’s fees

a. if a fee-shifting statute, then 54(d) gives procedure

b. sanctions are a different procedure



Q. Rule 69. Execution

1. directs seizure of property and public sale

2. state procedure and practice governs



R. Rule 60. Relief judgment of Order

1. One year limit grounds

a. 60(b)1 mistake, inadvertence, excusable neglect

b. 60(b)2 newly discovered evidence (new trial under Rule 59)

c. 60(b)3 fraud

2. Reasonable time limit grounds

a. 60(b)4 void judgment (territorial jurisdiction by special appearance)

b. 60(b)5 satisfied, released, discharged, reversed vacated

c. 60(b)6 other (catch-all)

3. Tension between meaningful final judgment and good enough reasons to reopen



S. Rule 79. Books and Records kept by clerk and entries therein

1. civil docket

2. civil judgment



T. Rule 46. Exceptions Unnecessary

1. Make objection and grounds in order to preserve objection

2. Affects jury instruction request or objection to instructions under Rule 51



U. Ways around final judgment rule

1. Collateral order doctrine (Colston)

2. 28 USC §1292(a) injunctive relief

3. 28 USC §1292(b) permission of D Ct and Ct App

4. Rule 54(b) multiple parties/claims

a. DC must express no just reason for delay

b. and express direction for entry of judgment

c. fewer than all claims or parties

5. Rule 23(f) class actions-Ct App has discretion of interlocutory review for class

certification.

6. Extraordinary writs

a. drastic remedy—superior court tells inferior court they’ve done bad

b. federal courts don’t really do this







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VIII. CLAIM AND ISSUE PRECLUSION



A. Claim Preclusion in general

1. Basic notion: DPC assures persons of their day in court

2. Claim Preclusion Generally

a. Definition: Final judgment on merits of action precludes parties from

relitigating claims that could have been raised in that action.

b. Use It or Lose It

i. if in doubt about whether a claim would be allowed under supp

juris or whether a claim is compulsory, always try to bring claims

ii. if you try to bring claims and court says no, you are protected

from claim preclusion

c. Exceptions when claim-splitting is acceptable

i. parties agreed

ii. Court or Congress said so(28 USC §1738)

iii. P was unable to rely on certain theory, seek certain remedy or

form of relief

iv. First judgment is invalid (inconsistent with statute of Con)

v. Re-occurring wrong (sue time to time)

vi. other extraordinary reasons



B. Claim Preclusion Elements

1. Final and Valid Judgment

a. Final

i. If being overturned on appeal, then final judgment will be vacated

and preclusive effect vanishes.

ii. claim preclusion consequences are not altered by wrong or

overruled judgment, but can be corrected on review (appeal)

b. Valid: exceptions include territorial jurisdiction

i. invalid if default judgment issued person who failed to appear;

must be domesticated to be valid in specific state

ii. Default Judgment is also a reason for relief (Rule 60(b)(4).

2. On the Merits

a. lack of jurisdiction, improper venue and failure to join a party dismissals

are NOT on merits.

b. dismissal with prejudice, failure to state a claim, summary judgment,

judgment as a matter of law are on merits

3. Same or Related Claim (P wins: merged; P loses: barred)

a. “relatedness” refers to (Restatement § 24)

i. whether facts are related by “time, space, motivation”

ii. claims for a convenient trial unit

iii. treatment as unit conforms to parties’ expectations

iv. similar to §1367(a) and joinder rules in wording: “part of

transaction, or series of connected transactions, out of which actions

arose” but meaning varies

v. no bright line definition

b. compulsory counterclaims under 13(a) must be raised

i. example of Ds being claim precluded

ii. claim splitting generally risky

iii. Interveners (24) must raise all relevant claims

iv. Not all related claims must be brought against all possible parties





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4. Same Parties or Their Privies

a. privy requires close relation

i. previous and subsequent landowner

ii. beneficiary of estate privity with trustee

iii. consent

b. if different D or P, not claim precluded generally

c. consider whether parties have parallel interests

i. control or participation in earlier litigation

ii. acquiescence

iii. deliberate maneuvering to avoid effects of first case

iv. close relationship btw parties to various cases

d. class actions



C. Federated Department Stores, Inc. v. Moitie

1. Facts: US sued dept stores for fixing prices of women’s clothing. Seven private

class actions were filed separately for damages with complaint similar to US,

including Moitie in state court referring to state law and Brown in federal court.

Moitie was removed to federal court based on federal question and diversity. Federal

court dismissed all 7 actions. Five cases appealed. Moitie II and Brown II

(nondiverse) do NOT appeal and re-file in state court. Ds remove to federal court

again and dismiss on claim preclusion. Other 5 actions win on appeal due to law

change. Court makes an exception to claim preclusion for Moitie II and Brown II. Ds

appeal that exception is not allowed.

2. Moitie II and Brown II should be claim precluded because these claims were

brought in suit 1 (questionable) and the claims should have been brought in suit 1.

3. Federal court in stage 2 should not have allowed removal of Moitie II and Brown

II b/c they sued on different grounds (not federal law) and well-pleaded complaint

rule allows it (see Mottley)

4. Moitie I and Brown I should have appealed.



D. Staats v. County of Sawyer

1. Facts: Staats sued for disability discrimination in admin proceedings under limited

juris and his claims were rejected. Staats also filed charges in federal court and

district court dismissed claims on grounds of claim preclusion. Staats appealed.

2. Because his disability claim had to be adjudicated in a forum of limited

jurisdiction AND her federal claims could not have been heard by that court, Staats is

not precluded from bringing federal claims in another forum.

3. State law and not federal law applies on claim preclusion under 28 USC §1738.

4. If consolidation is not possible, then P’s claims will not be claim precluded.



E. Issue Preclusion Generally

1. Definition: When an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination is essential

to the judgment, the determination is conclusive in a subsequent action btw

parties, whether on the same or a different claim.

2. Issue preclusion typically applies to facts rather than law

i. stare decisis can be used for law (legal issue decided)

ii. issue preclusion is greater hurdle than stare decisis

iii. used for law IF legal issue is true for factually indistinguishable

scenarios

iv. if you want to change or modify law





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A. issue preclusion claim vulnerable to Rule 11 sanctions

B. stare decisis claim does not

3. Always take appeal, b/c law can change and your issue will get issue

precluded anyhow



F. Issue Preclusion Elements

1. Final and Valid Judgment

a. judicial proceeding or state agency?

b. if agency, like a judicial proceeding?

c. opportunity to appeal?

2. Issue was actually litigated

a. full and fair opportunity to litigate

b. must be EXACT same issue

c. evidence on issue

d. NOT litigated if issue conceded, parties stipulate to resolution, default

judgment due to no appearance), burden changed (criminal to civil)

3. Issue was actually determined and determination was necessary to judgment

a. issues in both proceedings must be identical

b. essential to judgment

i. foreseeable

ii. adequate incentive

iii. can be appealed

c. NOT determined if judge compromised issue

d. MAY be determined if alternative holdings

4. Same parties or Their Privies



G. Levy v. Kosher Overseers Association of America (Same parties)

1. Ps filed an opposition to Ds’ registration of a confusingly similar trademark and

the trademark board sustained the opposition. D did not appeal but continued to use

mark. Ps brought action to enjoin Ds from using mark and moved for summary

judgment based on issue preclusion. District Court granted SJ; Ds appealed.

2. Board’s decision did not have an issue preclusion effect because the standards

regarding the registration and that necessary for an injunction were sufficiently

different (actual usage considered in Fed. Ct. but not in TTAB)

3. Not claim preclusion b/c Ps couldn’t have requested the injunction from the

trademark board…

4. If admin proceeding resembles a judicial proceeding, preclusion probably applies



H. Hypothetical

1. A and B get into car accident. A is contributorily negligent. A gets nothing. B was

found to be negligent during proceedings. C sues B ands wants to issue preclude B’s

negligence.

2. B’s negligence was determined but not necessary. Judgment hinges on A’s

negligence and not B’s negligence. B’s negligence doesn’t matter.

3. Why is necessity so important? B can’t take appeal even if he thinks the evidence

shows that was not negligent.



I. Nonmutual Issue Preclusion

1. Rejected mutuality rule: Neither party could use a prior judgment as an

estoppel unless both parties were bound by judgment.







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2. Defensive issue preclusion: A sues B for x and loses; A sues C for x; A is

defensively issue precluded from litigating x agst C. (Ps are the same)

a. generally ok and granted

3. Offensive issue preclusion: A sues B for x and wins; C sues B for x. C is

offensively issue precluding B from litigating x. (Ds are the same)

a. no offensive preclusion if

i. P could have easily joined in prior action

ii. Unfair to D

A. D had little incentive to litigate in first suit

-example (small damages)

B. prior judgment is inconsistent with previous judgments

C. 2nd suit provides procedural opportunities unavailable in

first suit that could cause different result

-example (discovery opportunities)

b. Offensive requires more b/c D did not choose forum

c. Court has discretion

4. Whichever suit reaches final judgment first has final judgment and affects later

preclusion (not based on timing of filing)

5. Potential judgments of issue preclusion stack the chips in settlements



J. Parklane Hoisery Co. v. Shore

1. Facts: Suit 1: SEC (P1) sued hosiery (D1) for misrepresentation (x) and won. A

class action rep (P2) sued D1 for misrepresentation (x). P2 moved for partial

summary judgment based on issue preclusion. Suit 1 was a bench trial and suit 2 is a

jury trial.

2. Holding: Offensive issue preclusion prevents Ds from relitigating the factual issues

determined against them in suit 1 even if a jury is now available in suit 2.

3. Courts have broad discretion to apply offensive preclusion

a. stronger showing for offensive than defensive issue preclusion

b. if P could have easily joined in first suit, no issue preclusion

c. evaluate unfairness to D

4. Court declared that there was no evidence for a reasonably jury to find for

a. not in conflict with Seventh Amendment right to jury

b. jury not considered an important procedural opportunity



L. Comparing claim and issue preclusion

Claim Preclusion Issue Preclusion

Valid and final judgment Valid and final judgment

On the merits Issue was actually litigated

Same or related claim Issue was actually determined & determination

was necessary to the judgment

Same parties or their privies Same parties or their privies, unless NMIP



K. Different bodies of law govern claim preclusion depending on forums of suits

Suit 1 State Ct Suit 1 Fed Ct Fed Q Suit 1 Fed Ct Div

Suit 2 State Ct FFC Clause Art III, Art. VI, f.c.l. Art. III, f.c.l.

FFC Statute

Suit 2 Fed Ct Fed Q FFC Statute Art III, f.c.l.

Suit 2 Fed Ct Div FFC Statute









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1. Full faith and credit

a. Article IV §1 Full faith and credit: punts to Congress

b. 28 USC §1738 State and Territorial Statutes and Judicial Proceedings; full

faith and credit:

2. Res Judicata

a. advantages

i. parties know where they stand

ii. judicial consistency

iii. judicial efficiency

b. disadvantages

i. relevant information unknown

ii. parties may be unaware of litigation

iii. court could have made a mistake



IX. ERIE DOCTRINE



A. Governing Acts and Statutes

1. Rules Enabling Act (28 U.S.C. §1652)

a. “The laws of the several states, except where the Constitution or treaties of

the US or Acts of Congress otherwise require or provide, shall be regarded as

rules of decision in civil actions in the courts of the US, in cases where they

apply.”

b. laws were in dispute, but now refer to statutes and case law

c. in cases where they apply is ambiguous; interpreted by case law

2. Rules of Decision Act (28 U.S.C. §2072)

a. “The Supreme Court shall have the power to prescribe general rules of

practice and procedure and rules of evidence for cases in the US district

courts…and court of appeals”

b. “Such rules shall not abridge, enlarge or modify any substantive right. All

laws in conflicts with such rules shall be of no further force or effect after

such rules have taken effect.”

c. Part (a) grants right to create FRCP and they were 4 years later

d. Part (b) is relevant to the checking whether the federal treaty, statute, or

rule on point is “valid” under the Erie analysis

i. Part (b) is the “our federalism” provision

ii. consider narrow and broad interpretations when deciding whether

a rule is sufficiently “on point”=applicable

iii. according to Professor Burbank, ask if there is a predictable

change of substantive rights



B. Swift v. Tyson

1. Facts: Tyson promised to pay 2 men a “bill.” Two men endorsed bill to Swift.

Swift sued in federal court. Tyson asserted defense of no consideration. Defense was

available in “general law” (judge-made federal law based on common law) but not in

“local law” (state law)

2. Holding: Federal courts should follow general law rather than state law in cases

where state law deviated from general law.

3. §1652 interpreted to exclude judge-made general law

4. Federal courts were attempting to find a “true” governing body of law

5. After Civil War, general law encroached heavily on state law





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a. general law included tort

b. general law favored creditors/employees over state favored workers



C. Erie Railroad Co. v. Tompkins

1. Facts: PA resident hit by door of passing freight train. He sued RR for negligence

in NY federal court hoping for general law. General law: P was invitee; RR owed a

duty. Local law: P is trespasser and RR owes no duty, unless wanton and willful

2. Holding: Federal courts with diversity jurisdiction are obligated to adhere to state

law on substantive claims whose cause of action was created by state law.

3. Substantive versus procedural distinction arises

4. Erie destroys federal general common law (still a federal common law)

5. Swift unconstitutional due to its abuse (such as reincorporation for diversity)

a. varying substantive law

b. forum shopping

6. Acceptance that no transcendental body of law-judges make law



D. Impact of state law in federal court

1. Procedures are hard to distinguish from substance

2. Federal judge may have to guess as to what state supreme court will do

3. If federal court gets state law wrong, state’s highest court does not get a chance to

review. P appeals to US court of Appeals.

4. If intermediate state court has ruled, but supreme court has not, and federal court

believes that highest state court will rule differently, he must go on his hunch.



E. Guaranty Trust Co. v. York

1. Facts: York filed in diversity in NY federal court for fraud under state law in

contention with certain transactions of D. D pleaded SOL had run under bright-line

NY law. P contended that federal court’s flexible laches doctrine applied.

2. Holding: If following a federal practice that differed from state procedure might

significantly affect the result of a litigation, the court must apply the state rule

instead, to prevent diverse parties from gaining unfair advantages simply b/c they can

choose federal court.

3. “Our federalism:” federal court sitting in diversity should act like another state

court for preservation of separation of powers and sovereign states.



F. Sibbach v. Wilson

1. Facts: District court ordered a physical exam for P under Rule 35. State law had

not authorized physical exams. P refused to submit to exam. Court held P in

contempt. Supreme Court held that Rule 35 should apply.

2. When a FRCP is on point AND valid, the FRCP governs a state claim

brought in federal court.

a. A FRCP is valid if it

i. doesn’t violate Constitution

ii. doesn’t abridge, enlarge or modify any substantive right

b. No Supreme Court decision has ever invalidated a FRCP

c. To determine if FRCP is on point, see Palmer, Regan





G. Palmer v. Hoffman (FRCP 8 not on point)

1. Facts: P sued in federal court for tort. If state law defined burden of proof, it would

be on P. If federal law defined burden of proof, it would be on D. Apply state law.





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2. Rule 8(c) covers burdens tangentially in describing affirmative defenses and

mandating contributory negligence be pleaded (burden of pleading). Court argues

8(c) is not on point because it concerns an earlier question of pleading.



H. Klaxon v. Stentor (choice of law)

1. Facts: P (NY) filed contract breach in federal court in DE. P and D disagreed about

which state’s law (NY or DE) governed the choice of law.

2. Federal district court should apply choice of law rules of the state in which the

court sits.



I. Regan v. Merchants Transfer and Warehouse (FRCP 3 not on point)

1. Facts: P sued in diversity in federal court for tort. He filed his complaint within

state SOL for suit commencement, but served process later. FRCP 3 says action

commences upon filing. State rule says action commences upon service of summons.

2. State law was followed b/c FRCP was not sufficiently on point

3. Disputed by Judge Harlan in Hanna concurrence



J. Byrd v. Blue Ridge Rural Electric Company

1. Facts: P sued contractor for tort in federal court under diversity. D’s affirmative

defense was a state statute barring suit and obliging P to accept compensation.

Question is whether P is a statutory owner (question of fact). Federal court allows

jury to decide issue while state court allows judge to decide.

2. Federal interest in invoking policies favoring jury decisions of disputed fact

questions dominate over state’s interest of state court decisions denying jury.

3. Byrd says that the outcome determinative test should be considered along with a

balancing test of federal and state interests



K. Hanna v. Plumer

1. Facts: P sued D for tort in federal court. P served summons by leaving copies with

D’s wife at his residence in compliance with FRCP 4(e)(2). D filed his answer

alleging improper service under state law which requires hand service within 1 year.

2. Outcome determination should be considered in reference to twin aims of Erie:

forum shopping and inequitable administration of laws.

3. Erie was interpreted to mean that federal court should use FRCP if it’s applicable

and valid under Constitution and Rules Enabling Act.

4. FRCP was created under §2072(a) and the rule does not abridge, enlarge or modify

any substantive right under §2072(b).

a. Analysis of substantive rights under §2072 should involve whether

application of rule would substantially affect those primary decisions

respecting human conduct which our constitutional system leaves to state

regulation.

b. Different people will reasonably assess the effect of behavior following

commission as minimal or significant.

c. Often depends on whether the Rule is interpreted “broadly” or “narrowly”



I. Hypothetical

1. P sued foreign D in state court where there is no forum non conveniens doctrine. D

removes on grounds of alienage to federal court where there’s a forum non

conveniens doctrine.

2. Erie Tree

a. arguably procedural: yes (forum non conveniens dismissal=procedure)





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b. conflict btw federal and state practice: yes (dismissal or not)

c. constitutional provision, or valid treaty, statute or rule: No, only judge

made law only

d. determinative outcome: yes, denied or not

i. forum shopping=yes

ii. unequal admin of laws=yes

e. Federal interests v. state interests: Federal…



J. Gasperini v. Center for Humanities, Inc.

1. Facts: Gasperini sues Center for lost transparencies. Jury awards potentially

excessive damages. D motions for new trial under Rule 59. Trial court denies. D

appeals and appellate court grants a remittutur using state statute standard of

“materially deviates” rather than federal practice standard of “shocks the

conscience.”

2. Federal district court shall apply state’s statute standard of materially deviates in

determining excessiveness, but federal appellate court shall apply federal standard of

abuse of discretion review

3. Erie analysis at trial court level:

a. arguably procedural: yes, which standard of excessiveness should a new

trial be granted upon

b. conflict: yes (materially deviates v. shocks the conscience)

c. constitutional provision, or valid treaty, statute or rule: judicial practice

i. Rule 59 not on point (valid maybe)

ii. Seventh Amendment not on point

d. outcome determinative: yes

i. incentive to forum shop

ii. inequitable admin of laws

e. overriding federal interest: no, state interest outweighs federal

i. NY legislature enacted statute

ii. don’t want to dilute effectiveness of tort reform

4. Erie analysis at appellate court level

a. procedural: type of review

b. conflict: state de novo review w/ materially deviates standard v.

discretionary abuse of discretion standard

c. judicial practice

i. Maybe Seventh Amendment does not permit de novo review?

d. outcome determinative: no

i. maybe forum shopping based on different review stds?

e. overriding federal interest: yes, definitely

5. Gasperini modifies treat slightly in the sense that a hybrid rather than either/or

standard may result from Byrd analysis.









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